Hsing-O v. NCL (BAHAMAS) LTD

Filing 42

ORDER granting in part and denying in part 34 Plaintiff's Motion to Compel. Signed by Magistrate Judge Edwin G. Torres on 9/18/2017. (js02)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-23807-Civ-COOKE/TORRES
ESTHER WILLIAMS HSING-O,
a Florida citizen and resident,
Plaintiff,
v.
NCL (BAHAMAS) LTD., a Bermuda
corporation d/b/a NORWEGIAN CRUISE LINES
a Bermuda corporation,
Defendant,
______________________________________/
ORDER ON PLAINTIFF’S MOTION TO COMPEL
This matter is before the Court on Esther Williams Hsing-O’s (“Plaintiff”)
motion to compel [D.E. 34] against NCL (Bahamas) LTD.’s (“Defendant”). [D.E. 34].
Defendant responded to Plaintiff’s motion on August 18, 2017 [D.E. 38] to which
Plaintiff replied on August 25, 2017. [D.E. 41]. Therefore, Plaintiff’s motion is now
ripe for disposition.

After careful consideration of the motion, response, reply,

relevant authority, and for the reasons discussed below, Plaintiff’s motion is
GRANTED in part and DENIED in part.

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I.

ANALYSIS

This action arises out of injuries that Plaintiff sustained while she was a
passenger onboard the Defendant’s cruise ship, the Norwegian Sky. Following a
trip and fall in her cabin bathroom, Plaintiff sustained a compression fracture that
the shipboard medical staff allegedly failed to diagnose and treat. On June 10,
2017, Plaintiff propounded interrogatories and requested discovery on similar slip
and falls within Defendant’s fleet for four years prior to the accident in this case:
10. Identify all other persons, including passengers and/or crew, who
reported a trip and fall on the same or similar shower ledge identified
in this lawsuit aboard all ‘sister ships’/ ‘similar class vessels’ as the
cruise ship identified in the Complaint within Defendant’s fleet for the
four (4) years prior to and since the subject accident.
[D.E. 34].
On June 16, 2017, Plaintiff served its list of 30(b)(6) deposition topics and one
of the areas of inquiry was to discover “[a]ll facts and information known including
number, location, and identity of all persons who reported a prior similar trip and
fall while aboard the Defendant’s cruise ships for the five years prior to the date of
the incident.” [D.E. 34-2]. The night before the scheduled deposition, Defendant
repeated its objections to interrogatory 10 and stated: “Notwithstanding this
objection, NCL’s corporate representative is prepared to testify regarding prior trips
and falls within guest cabin bathrooms onboard the Norwegian Sky for the three (3)
year period prior to Plaintiff’s claimed incident.” [D.E. 34-3].
The deposition went forward on July 19, 2017 and Ms. Williams-Inman was
designated to discuss the topics of inquiry. Instead of being prepared to testify
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about prior trip and falls in the cabin bathrooms for the previous three years,
Plaintiff alleges that defense counsel arbitrarily narrowed the scope of the
testimony even further. Specifically, Plaintiff suggests that an in-house lawyer for
Defendant, Jeffery Probst, searched the Defendant’s databases and created a list of
prior accidents. That list was then purportedly given to outside counsel who (1)
narrowed that list down to four incidents, (2) included a brief description of each
incident, and (3) created a chart for Ms. Williams-Inman to use at the deposition.
Aside from this list, Plaintiff alleges that Ms. Williams-Inman had no substantive
knowledge about the incidents to which she testified, and no knowledge about any
other prior incidents, despite the fact that Defendant created a longer and more
complete list that was not produced. Therefore, Plaintiff believes that Defendant
should be compelled to provide better answers to interrogatory 10, providing not
only the list that was created internally (as opposed to that created by counsel), as
well as the same list for all vessels in its class for a five year period.
Plaintiff also claims that Defendant failed to comply with the Federal Rules
in terms of preparing the corporate deponent. Despite the fact that Defendant’s inhouse counsel prepared a list of prior similar incidents for the deposition, Plaintiff
suggests that Ms. Williams-Inman willfully declined to review the list, instead
relying solely on the condensed list that outside counsel put together.

Plaintiff

states that the corporate deponent had no further information about prior incidents
aside from what outside counsel prepared, despite the fact that Defendant prepared
documents regarding each incident that she could have reviewed.
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Furthermore, Plaintiff contends that she served a request for production on
January 18, 2017, requesting all photographs and video depicting the Plaintiff.
[D.E. 34-4]. On February 24, 2017, Defendant responded, stating that it would
supplement its response subject to any applicable privilege. Yet, the Defendant
allegedly never advised that it was in possession of any footage until the deposition
of Ms. Williams-Inman when she began to testify based upon a review of the
footage. Plaintiff suggests that the footage is of critical importance, as one of the
issues on her medical negligence claim is whether or not the shipboard doctor
visited Plaintiff at the scene of the incident. Because Plaintiff has requested a copy
of the footage and still has not received it in a useable format, Plaintiff believes that
the discovery requested should be compelled accordingly. In sum, Plaintiff seeks to
(1) compel disclosure of Defendant’s internal list of prior incidents for a 5 year
period for similar vessels as the Norwegian Sky, and to (2) compel production of the
video footage within 5 days.
In response, Defendant argues that Ms. Williams-Inman was well prepared
for her deposition and that she testified regarding prior trips and falls within cabin
bathrooms onboard the Norwegian Sky for the 3 year period prior to Plaintiff’s
alleged incident.

More specifically, Defendant claims that Ms. Williams-Inman

testified that a prior incidents search was completed and that it generated a list
that included trips in cabins (the living space where guests sleep) as well as trips in
bathrooms within the last three years.

Incidents involving trips in the living

spaces of the cabins were apparently then eliminated from the search results
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because they were allegedly not responsive to any of Plaintiff’s discovery requests.
As Ms. Williams-Inman stated:
Q: Okay. And how – what specifically did Mr. Probst search for in
Prospective?
A: He put in the parameters of three years prior to the date of her
incident, trips in cabins.
Q: Okay.
A: And then once he pulled that information, he gave it to our outside
counsel, and they were able to go ahead and review it and pull out the
ones that said cabin bathrooms, not just cabins.
[D.E. 34-2 at 41:1-18].
Given Ms. Williams-Inman’s testimony, Defendant argues that it did not
narrow the scope of prior incidents from three years on the cruise ship within cabin
bathrooms as Plaintiff claims. Instead, Defendant claims that it merely eliminated
unresponsive, irrelevant prior trips occurring in the cabin living spaces from the
initial search results. Trips in cabin living spaces have allegedly never been asked
for in this litigation and even if they were, Defendant suggests that they are
irrelevant to the claims and defenses asserted in this action and that they are not
proportional to the needs of this case. As such, Defendant posits that no incidents
taking place in cabin bathrooms for the previous three years on the Norwegian Sky
were withheld.
Second, Defendant contends that Plaintiff’s motion lacks merit because
Plaintiff viewed the video footage at issue during the deposition of Ms. WilliamsInman.

Defendant suggests that the video footage is not materially important

anyway because it does not depict the alleged trip and fall. Instead, it purportedly
shows Plaintiff being escorted to the medical infirmary in a wheelchair.
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After

Plaintiff viewed the footage at the deposition, Defendant argues that she had an
adequate opportunity to question Ms. Williams-Inman.

And following the

deposition, Defendant claims that it attempted to convert the footage to a viewable
format, but was unable to do so. Defendant states that this is not a situation where
defense counsel can simply email or mail the video footage, presumably because of
the size of the video file. In any event, Defendant reiterates that the video files
have been provided to Plaintiff as of August 17, 2017 and that Plaintiff’s motion on
this basis is moot.
As an initial matter, we agree that Defendant should be required to produce
the contents of its internal search for all slip and falls in cabin bathrooms for any
vessel in the same class as the cruise ship identified in Plaintiff’s complaint. While
Defendant suggests that the scope of any discovery should be limited to only the
cruise ship where Plaintiff fell, there is nothing to indicate that the circumstances
presented support such a restricted scope. Indeed, the configuration of the cabin
bathrooms and shower designs are allegedly common to Defendant’s other ships – a
contention that Defendant does not rebut in its response to Plaintiff’s motion.
However, we also agree with Defendant that three, rather than five, years is
sufficient to determine whether any similar prior occurrences show that Defendant
was on notice about any dangers in connection with the cabin bathrooms. See, e.g.,
Shorenstein v. Target Corp., 2016 WL 7637280, at *3 (S.D. Fla. June 2, 2016)
(“Plaintiffs’ counsel may inquire into other incidents involving rolled curbs at any of
the Target stores in Palm Beach County, Broward County, or Miami-Dade County
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for the three years prior to Plaintiff's incident.”). As such, Defendant is compelled
to provide a better response to interrogatory 10 and produce any relevant nonprivileged documents within the last three years that identify a slip and fall in a
cabin bathroom on any vessel of the same class as the cruise ship identified in
Plaintiff’s complaint within seven (7) days from the date of this Order. To this
extent, Plaintiff’s motion is GRANTED in part and DENIED in part.
As for the parties’ dispute on the production of the video footage, we agree
with Plaintiff that Defendant must produce the video footage in a useable format.
Defendant noticeably omits in its response why the video, which allegedly existed
for several months, never informed Plaintiff prior to the deposition that it existed or
produced it long ago. It appears that only after Ms. Williams-Inman identified that
the video footage existed that Defendant confirmed that it was in possession of this
discovery.
To be specific, there are four videos that need to be produced, each of which is
roughly an hour in duration. Plaintiff argues that it took the Defendant until the
day of its response to produce the video footage. Yet, Plaintiff contends that as of
August 25, 2017, Defendant has still not produced the video footage in a useable
format. We agree with Plaintiff that it remains unclear as to why the video footage
cannot be produced in a useable format.

And Defendant has presented no

justifiable reason why the conversion of this video footage is such a challenging
exercise. Therefore, on this basis, Plaintiff’s motion is GRANTED and Defendant

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is compelled to produce to Plaintiff the video footage at issue in a useable format
within seven (7) days from the date of this Order.
A final point of inquiry is whether another 30(b)(6) deposition should be
compelled given that, during the deposition of Ms. Williams-Inman, Defendant did
not produce all of the documents requested and failed to produce the video footage
discussed above.

Given the circumstances presented, a second deposition is

appropriate but it shall be limited to no more than two (2) hours in length and focus
on the outstanding discovery (i.e. the video footage and prior incidents within the
last three years onboard either the Norwegian Sky or similar vessels) that
Defendant needs to produce. To this extent, Plaintiff’s motion is GRANTED.
II.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that
Plaintiff’s Motion to Compel is GRANTED in part and DENIED in part. [D.E.
34]. Defendant is compelled to provide a better response to interrogatory 10 and
produce any relevant non-privileged documents within the last three years that
identify a slip and fall in a cabin bathroom on any vessel of the same class as the
cruise ship identified in Plaintiff’s complaint within seven (7) days from the date of
this Order. Defendant is also compelled to produce to Plaintiff the video footage at
issue in a useable format within seven (7) days from the date of this Order. And, to
the extent Plaintiff seeks another 30(b)(6) deposition, that shall occur no later than
ten (10) days from the date of this Order.

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DONE AND ORDERED in Chambers at Miami, Florida, this 18th day of
September, 2017.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge

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